Mission Valley Motion Mixup

San Diego  If you ever suffer insomnia, you might play the streaming video of a San Diego City Council meeting. While you're at it, check whether the minutes of the council meeting are accurate. The video of a recent meeting and some of the meeting's minutes don't square too well. During the meeting in question, the council discussed the environmental document for the Pacific Coast Office Building. In September 2006, several community groups successfully appealed the document's approval. The council remanded the document to the Planning Commission, which approved it again with no changes. So, on July 31, the council heard a second appeal by the River Valley Preservation Project, the University Heights Planning Committee, Friends of San Diego, and the San Diego Chapter of the Sierra Club. Developer Robert Pollack intends to build the structure at the base of the southern Mission Valley hillside below Normal Heights.

Here's how the minutes of the July 31 meeting record a motion on the Pacific Coast Office Building's mitigated negative declaration. "Motion by [Sixth District councilwoman Donna] Frye to close the public hearing and to continue to...September 25, 2007, to allow Frye...to come back with findings for council's consideration."

A look at the streaming video for the July 31 meeting, however, reveals much that was left out. Council president Scott Peters is seen asking deputy city attorney Karen Heumann to state the motion. "As I understand it so far," says Heumann, "you [Frye] are asking that we take action under the municipal code...that you want to set aside the [mitigated negative declaration], that you would like to see an [environmental impact report]. However, you would like to...ask for a continuance...." Heumann goes on to characterize the "continuance" as intended to "clarify your position...in a more specific direction...."

"We have a September 25 date," says Peters. "Is that your motion?"

"That is my motion, Mr. Peters," Frye says.

How to interpret the motion may depend on the meaning of a single word. In Heumann's statement, does "however" only qualify Frye's attempt to make an environmental document change? All along, the appellants have wanted to force the project to provide an environmental impact report rather than the weaker mitigated negative declaration. The latter states only how the owner will compensate for the building's negative environmental effects. The former could result in an order that requires the owner to take the project elsewhere.

Or does "however" signify that Frye wants a continuance instead of the environmental document change? In the latter case, her request for a continuance would mean the environmental issues have yet to be decided. Such an interpretation would not agree, however, with how Karen Heumann thought she was stating Frye's motion on July 31. In an August 1 e-mail to Randy Berkman, who has fought Pacific Coast for several years, Heumann wrote: "The Council voted to require an [environmental impact report]. Now all that remains is a continued hearing to make...findings in addition to the findings Councilmember Frye already made and/or clarifying findings."

September 25, the day for the continuance, came and went with no resolution. A day earlier, Pollack's attorney Michael McDade sent a letter to each councilmember with a reminder that he would back his client's project with every legal remedy available. It looked as though the council would finally tip its hand on how to handle the Frye motion. Members first listened to a pitch by McDade, a member of the City's Charter Review Committee and former chief of staff to ex-mayor Roger Hedgecock. McDade wanted only, he said, to have a full council vote on his client's project. And all members were present. But Seventh District councilman Jim Madaffer, who missed the July 31 meeting, said he could not vote on Pacific Coast Office Building matters until he had seen the video of that day's discussion. He asked for, and was granted, another continuance. The project is now on the docket for next Tuesday, October 23.

Meanwhile, Randy Berkman asked the city clerk's office to explain the change of the Frye motion's wording. He had seen the "Results Sheet" for the meeting. Results Sheets are the first statement of the issues in council motions as transcribed during the meetings. For the Pacific Coast Office Building motion on July 31, the sheet indicated that those issues involved "granting or denying the appeal and upholding or overturning the mitigated negative declaration."

On September 27, Berkman e-mailed the clerk's legislative recorder, Sara Richardson. "Did any member of the City Council," he asked, "contact you and request that draft...minutes be changed for the July 31 [discussion] of the Pacific Coast Office Building?... Is it not standard practice to record Council motions...exactly as they were stated?"

Richardson did not answer the questions but wrote back, "The motion captures the action of Council.... If you need further clarification, please feel free to come to the Council meeting...when the item will be heard again."

Berkman also filed with the city clerk a California Public Records Act request for e-mails and documents that discuss the item's wording. In an October 3 e-mail promising to fulfill the request, City Clerk Elizabeth Maland wrote to Berkman: "I must caution you that the Results Sheet is not equivalent to the minutes. It never goes before City Council for approval and is considered a draft."

Maland then described a process of review that she initiated after learning there was trouble ahead. "It was only after discussing it with Assistant City Attorney Karen Heumann that a question was raised about the continuance," wrote Maland. "Once a question was raised, I asked my staff to research the issue. In deference to the City Attorney, the original Results Sheet reflected her view until we could properly research the item. This research is typical on a contested item...." It involves consultations with the maker of the motion, the seconder, the Director of Legislative Affairs, the Development Services manager for the project, and the City Attorney's office. Only after these talks is a transcript made of "the discussion surrounding the motion and the vote." (Apparently, no representative for the appellants was contacted.)